The Standing Committee on Canadian Heritage continued its clause-by-clause review of Bill C-10 yesterday, spending the full two hours debating a Conservative amendment that would have restored the user generated content safeguards that were removed when Section 4.1 was dropped from the bill. The Conservative amendment effectively offered the parties a “do-over” by acknowledging that the removal had sparked huge public concern over the implications for freedom of expression and net neutrality. Nevertheless, the Liberals, NDP, and Bloc voted down the motion, with the NDP not even bothering to speak to the issue at all.
While the three parties were not supportive of addressing the user generated content concerns, they were quick to defend any suggestions that the study of Bill C-10 had been flawed and excluded important voices. For example, when Conservative MP Rachael Harder began reading comments from Scott Benzie on the harms to digital-first Canadian creators who did not appear before the committee (citing the likes of Lily Singh, Molly Burke and thousands more), Liberal MP Anthony Housefather jumped in with a “point of clarification” that the Conservatives could have invited Benzie as a witness (he said the same to me in a Twitter exchange). Bloc MP Martin Champoux also took issue with suggestions that the consultation had been incomplete, stating that there had been 121 witnesses.
To be clear, there has not been anywhere close to 121 witnesses in the committee’s study of Bill C-10. The committee’s study was divided into two: a study about Bill C-10 as the committee launched into hearings before the bill had even cleared second reading in the House of Commons (I wrote about the issue here) and a second study on Bill C-10 after second reading was completed. Excluding government officials and ministers, the committee heard from 11 individuals and organizations during part one (I appeared on February 5th) and 30 individuals and groups during part two (I appeared a second time on May 17th). There are certainly many appearances from department officials and several groups were invited back when their appearances were cut short by parliamentary business. But the reality is that the committee heard from a total 41 individuals and groups, not 121. Incredibly, there were only four independent experts appearing as individuals with the committee barely pretending to seek out independent, expert opinions or advice on the bill.
Not only are the number of witnesses relatively small for a bill of this importance, but who was excluded is notable as well. As Harder pointed out to the committee, it did not hear from digital-first creators, who are perhaps the most affected by the legislation given the decision to regulate user generated content. The committee also did not hear from experts on discoverability such Professor Fenwick McKelvey, who was good enough to do a study on the issue for Canadian Heritage but didn’t appear before committee (he is on this week’s Law Bytes podcast). It did not hear from experts on the CRTC such as Monica Auer from Canada’s Forum for Research and Policy in Communications, who today has a lengthy analysis in Cartt.ca on why the CRTC needs to be fixed before it is granted more powers. It did not hear from experts on European regulation, which took many more years to develop and is far more sophisticated than Bill C-10.
The list goes on: professors such as Emily Laidlaw and Dwayne Winseck have been vocal about the bill, but did not appear. Expert groups such as the Public Interest Advocacy Centre, Open Media, and CIPPIC regularly appear before the CRTC, but did not appear on Bill C-10. The myriad of online services ranging from podcast apps to audiobook platforms did not appear. And the “web giants”, who are the target of the legislation generally didn’t appear either, with only Netflix appearing before the committee, despite the legislation specifically now targeting companies such as Youtube and Spotify.
The impact of not having key witnesses appear before committee has become increasingly obvious as clause-by-clause has proceeded. The reality is that the MPs may be well-meaning, but there is too much they simply don’t know about the bill and its implications. This includes the numerous terms that are not defined, the likely impact on creators, the consequences of discoverability, and the ability to implement provisions that are not found anywhere else in the world among them. Without that knowledge, many simply revert to platitudes about making web giants pay, instead of acknowledging the obvious: the committee’s study of Bill C-10 has been deeply flawed and embarrassingly incomplete. As MP Kevin Waugh told committee yesterday, “Bill C-10 is a disaster now. We need to take a step back.”